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Drones causing safety concerns

Aug 28, 2015

By Norm Keith

Drones are increasingly used by employers for many business and commercial applications. Unmanned, radio-wave controlled, light and portable, drones are being used for aerial photography, geomatic surveying, pipeline inspections, post-avalanche searches, deliveries, monitoring forest fires, marketing and advertising, film and television, terrorist detection, critical infrastructure inspection and research and development. As the use of drones increases, so does the importance of addressing their occupational health and safety implications.

Very little consideration has been given to the fact that a growing use of drones relates to business activities, thereby making this an occupational, rather than just a public, safety issue. Currently, there is no formal legislation dealing with how to manage the workplace-related risks associated with their use in Canada. However, Transport Canada is working on regulations and intends to introduce them next year.

Operators of unmanned aerial vehicles (UAVs) must follow the rules set out in the Canadian Aviation Regulations (CAR) pursuant to the Aeronautics Act. Operators are also expected to abide by the Criminal Code provisions dealing with aeronautics as well as all municipal, provincial and territorial laws related to trespassing and privacy.

UAV operators for civil or commercial purposes are only authorized to fly with a Special Flight Operations Certificate (SFOC) issued by Transport Canada or if they hold an Air Operator Certificate that authorizes the use and operation of UAVs.

To be granted a SFOC, an application must be submitted that includes details such as the purpose of the operation; the dates and times of the proposed flight; a description of the aircraft; security plans and emergency contingency plans; and a detailed plan describing how the operation will be carried out, including the location of any obstacles and the exact boundaries of the area for the operations. The failure to obtain an SFOC may lead to fines of up to $5,000 for an individual and $25,000 for a company. Applicants must be able to demonstrate they are adequately equipped to safely operate the UAV in the desired environment.

The broadening popularity of the UAV industry has resulted in a corresponding growth in the number of SFOC applications. In 2014, Transport Canada issued 1,672 SFOCs for UAVs, compared to 945 in 2013 and only 345 in 2012. This represents an overall increase of nearly 500 per cent over two years.

To accommodate this exponential growth, Transport Canada issued two exemptions to the SFOC requirements last November, allowing some UAVs to operate without the certificate. Subject to certain conditions, they will be allowed to operate away from built-up areas, controlled airspace, aerodromes and other restricted locations.

The first new exemption applies to very small UAVs, weighing less than 2 kilograms. The second exemption applies to small UAVs, weighing between 2 and 25 kilograms, and with a maximum calibrated airspeed of 87 knots. Despite not requiring an Air Operator Certificate or SFOC, these UAVs must meet the safety conditions in the Transport Canada exemption and operators must provide Transport Canada with contact information, UAV model and serial number, a description of the operation and the geographical boundaries of the operation.

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Legal liability

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For federally regulated employers, failure to properly and proactively manage the use and workplace risk of drones could result in a fine up to $1 million and two years in jail for individuals under the Canada Labour Code. Provincial OHS laws also specify various fines and jail terms for an accused convicted of a health and safety offence.

There is also potential criminal liability. There are several offences in the Criminal Code specifically dealing with the misuse of aeronautic vehicles, which applies to the use of drones. The duty to take reasonable steps to prevent bodily harm, when violated, could result in an unlimited fine for corporations and life imprisonment for individuals. There are specific criminal offences related to intentional misuse of aircraft.

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As the commercial and work-related use of drones expands, employers must be mindful of their legal obligations under occupational health and safety legislation to take all precautions reasonable for the safety of workers.

There are three steps to consider for the safe use of drones:

• Establish a policy and program with respect to the proper and safe use of drones for operator safety, general worker safety and public safety.

• Provide effective training, necessary licensing and supervision to comply with federal and provincial safety laws. Make sure to document proof of training and licensing.

• Ensure effective review, tracking and ongoing assessment of the use of drones in the workplace and the field.

When drafting a drone safety policy, make sure to fly your drone during daylight and in good weather; keep your drone in sight, where you can see it with your own eyes — not only through an on-board camera, monitor or smartphone; respect the privacy of others and avoid flying over private property or taking photos or videos without written permission.

Don’t fly closer than 9 kilometres from any airport, heliport or aerodrome; closer than 150 metres from people, animals, buildings, structures or vehicles; near large groups of people, including sporting events, concerts, festivals and firework shows; near moving vehicles, highways, bridges or busy streets; within restricted airspace, including near or over military bases or prisons; or anywhere you may interfere with first responders.

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Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com. This article was co-authored by Megan Rolland, an associate in the firm’s labour, employment and human rights group.